QUEENS BENCH DIVISION
London, WC2A 2LL
B e f o r e :
| The Queen on the application of W
|- and -
|Doncaster Metropolitan Borough Council
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Robert Weir (instructed by Halliwell Landau) for the Defendant
Crown Copyright ©
Mr Justice Stanley Burnton:
"1.2 At the previous s. 117/CPA Meeting it was unanimously agreed, a period of assessment in a less secure hospital environment would be necessary and appropriate to determine (W's) ability to manage this significant transition prior to transfer to a community placement and consideration of his suitability for conditional discharge. In my view there have not been any significant developments which might warrant a radical departure from a plan which was previously agreed to be necessarily in the best interests of Mr W and the general public."
"The main risk factors in Mr W's case is the likelihood that he might stop taking his medication with the consequent relapse of his illness, causing him to become irritable and aggressive towards himself or others. This risk could be significantly diminished if he is offered a community place where there is staff available 24 hours who could also monitor his medication, in addition to the continuous involvement of the community team, including his CPN, Social Worker and Community Support Workers.
Given the stability of Mr W's mental state over the past 2 years or so and the encouraging degree of insight he has gained, I would consider him to present a low risk to the community at large, and hence fit to be discharged from hospital on a conditional discharge.
Should the panel agree to grant him a conditional discharge, I would be prepared to provide psychiatric supervision for him in the community. However, this offer would be subject to 2 conditions:
Firstly, during his first year in the community, should his mental condition deteriorate to such an extent that hospital admission is required, Wathwood Hospital will undertake to admit him.
Secondly, provision should be made available to ensure that full community support in Rotherham, including a CPN, Social Worker, and Community Support Worker are in place prior to his discharge from Wathwood Hospital."
"1. He shall receive psychiatric treatment from Dr A H Soliman or his successor.
2. He shall receive social supervision from a named social worker.
3. He shall reside at appropriate accommodation as approved by Dr Soliman and the named social worker."
"Though he has enjoyed generous unescorted leave in recent months there is a still a concern as to how (W) may react if left unsupervised and his previous mental history of violence, absconding, substance abuse and frank mental illness means that he must remain liable to recall.
For some time it has been recognised, both within the unit and by the designated social workers, that the patient is ready to move on. However, a transfer to a less secure hospital accommodation has not taken place, in part because of understandable concerns on (W)'s part about a return to the Doncaster area and renewed acquaintance with the victim of the index offence. In fact it seems to us that though such may have been appropriate as a 'test exercise' the statutory criteria did not demand such.
In the last few weeks real progress has been made to identify a suitable hostel placement. No formal assessment (at Westfield House) has yet taken place and thus, though we hope such may be (W)'s next move the conditions we impose are necessarily more general than would otherwise have been the case."
"It is my view that (W) requires 24 hour care provided by staff who are experienced not only in mental health but if possible forensic issues. I understand that you have visited Westfield House to carry out your own assessment regarding the suitability of the unit. It is my view that Westfield may not have adequate staffing levels and staff are not social work or RMN trained. (W) can be dependant on a service and will require a comprehensive care package on discharge, this will include day care. If (W) resettles in an area outside of Doncaster then there will be funding implications for Day Care."
She suggested a meeting to discuss the options.
"Westfield House is a privately managed residential facility providing primarily rehabilitation but also continuing care to clients from 18-65 years. However, this facility would appear to have had limited experience of providing support to clients with a forensic history and/or dual, multiple diagnosis. Further, there are no nurse or social work qualified professionals currently employed within the staff team. Concerns have been identified by local agencies and the social services department in Rotherham with regard to the possibility of a placement at Westfield House specifically with respect to the ability of this facility to adequately address the level and complexity of (W)'s perceived needs.
If such a placement were to be pursued then proactive, assertive in reach from community based mental health professionals would be perceived to be necessary to ensure (W) is adequately supported in this placement and any risk management or relapse prevention strategies are effectively implemented. The social services department in Rotherham has clearly stated it would not be prepared to provide social work support or intervention should (W) seek a placement in the area as he would not fulfil the criteria of ordinary residence.
The manager of the community mental health team covering the area where Westfield House is situated has been approached regarding the possibility of CPN intervention. However, I am advised they are not in a position to offer this service to a client in residential provision. Assistance with ongoing monitoring and assessment might be facilitated through access to structured rehabilitative day care. However, I am advised this provision is limited in availability in the Rotherham area. Further, there remain issues regarding registration under the Care Programme Approach which will need to be addressed and systems would need to be established to facilitate effective interagency working across agency boundaries.
In sum, given the issues identified regarding the suitability of Westfield House as a placement and the limited availability of formal community mental health services or support I would have serious reservations about pursuing a plan for (W) rehabilitation in the Rotherham area at the present time and the local authority assuming responsibility for his social supervision in this context. Further discussion between the relevant agencies is strongly recommended with a view to reconsideration of available options and addressing concerns identified."
Her report was countersigned by her Care Manager. The Head of Service for Community Care Commissioning in Doncaster responded to her report in a memorandum dated 12 September 2001:
"… I am writing to confirm that I share your reservations around the suitability of Westfield House as a placement for (W) at this time. I am particularly concerned that the care available at the Home and in the community is not sufficient to meet the identified risks. Consequently, I am not at this stage prepared to fund the placement at Westfield House."
(Emphasis in the original)
"The team at Wathwood feel that (W) does not require the current high level of inpatient care and had agreed that placement in Westfield House on a trial leave basis for up to three months, during which time structured day care could be introduced, would be a good way forward. Dr Soliman had agreed to act as RMO.
However, it was not clear where the additional community nursing support would come from. Mike Goss explained that Rotherham CPN Service is so stretched that it is unable to offer ongoing supervision.
Helen Arnell-Smith stated that on the basis of her needs assessment, the head of service commissioning would not fund Westfield House as it is not considered an acceptable placement on the grounds of poor staff training in mental health matters. This situation has been explained to (W) and he is now prepared to consider all the possible alternatives.
There has been discussion today about Swallownest. This is not felt to be suitable as it is an inpatient placement and (W) requires a community placement. The only other option at present is Jubilee Gardens in Barnsley. We would require an RMO. It has been agreed that Helen Arnell-Smith will liaise with Jubilee Gardens to investigate further the timescale for admission and suitability. Dr Kennedy/Dr Mendelson will investigate with Barnsley RMO's if any are prepared to take on (W)'s case. If it appears that the conditions of the Tribunal cannot be met within a reasonable time frame we will have to contact the Tribunal Clerk."
The note records that:
"All are in agreement as to the investigation of a Jubilee Gardens placement as the most appropriate way forward."
Jubilee Gardens is a hostel.
"… The only reasonable way forward is to support (W)'s wish for a placement at Westfield House Hostel and then to arrange the necessary community support."
"Westfield House is a relatively new unit and appears to have limited experience with forensic patients. There are no nurse or social work qualified professionals employed within the staff team. Local mental health professionals who know Mr (W) well are unhappy about the levels of risk, which would accompany placement at Westfield House at this stage, although it may be suitable in the long term."
She suggested a transfer to a hospital.
"There has been a consensus view this package should include accommodation with support available 24 hours to help promote his skills, confidence in relation to daily living and also assist with the monitoring of his mental health needs and related risk issues. Close supervision and monitoring have been identified as integral and necessary to any risk management or relapse prevention plan in (W)'s case given the propensity identified for unpredictable behaviour and rapid relapse combined with his risk history.
The staff team at Westfield House have had very limited experience of providing support to service users with forensic histories and multiple diagnoses, associated complexity of need. Further, there are no staff members with formal or relevant clinical qualifications and this is a relatively new facility having previously catered for older adults. Concerns have been identified by local agencies and social services professionals in Rotherham with regard to the suitability of this placement – specifically, serious questions have been raised as to the ability of this facility to adequately or safely address the complex needs and potential risks defining (W)'s situation.
Whilst Dr Soliman, Consultant Psychiatrist (Rotherham) had agreed to accept responsibility for (W)'s ongoing medical care and supervision prior to the Tribunal Hearing in July, a subsequent request was made reportedly on his behalf for this responsibility to be assumed by Dr O'Leary, Consultant Psychiatrist (Doncaster) – concerns having been identified at the time with regard to the potential difficulties of coordinating an effective multidisciplinary response across different authority and agency boundaries. Dr O'Leary declined this responsibility.
The concerns identified by the department and the principal social work practitioner at Wathwood RSU were communicated and discussed fully with other members of the inpatient clinical team and (W) in person prior to the s.117/CPA Meeting held on 13 September. At this planning meeting these issues were discussed at further length with Dr Soliman who appeared to fully acknowledge our concerns. It appeared Dr Soliman may have anticipated full transfer of responsibility to the Rotherham area.
Given the identified deficits of a placement at Westfield House specifically in relation to (W)'s documented needs and the absence of supportive intervention from community mental health services in Rotherham, related concerns identified by Dr Soliman about effective coordination of supervision, it was concluded at this s.117/CPA Meeting alternative possible placements should be investigated."
"5.3 A number of serious concerns have been identified regarding the suitability of Westfield House in Rotherham which has been identified as Mr W's preferred placement. These concerns have been compounded by the lack of support from community mental health services in the Rotherham area. A number of possible alternative placements across the region have been explored but without success. It is anticipated the s.117/CPA meeting scheduled for February will involve all agencies who have been concerned with Mr W's case in some way and thus facilitate further discussion and negotiation relating to his needs with a view to achieving agreement as to how these needs may be will be best met."
"The sticking point in the implementation of the conditional discharge of 9 July '01 has been a concern about inappropriateness of Westfield House, the accommodation preferred by (W), but not seen as ideal by Social Services either in Rotherham (where the facility is) or in Doncaster (who have S.117 responsibility for (W)). Social Services feel that Westfield House did not have the specialist staff skilled in the management of patients with a forensic history although we note that the other x-Wathwood patients currently reside there and are provided with CMHT support there. We decided because of this, and given the long term stability shown by (W), that Westfield House was an adequate placement.
We heard that Rotherham has some current staffing difficulties but that Doncaster Social Services accept their S.117 responsibility and would put in place CPN and social supervision for the initial period until Rotherham could take over."
The legal background
The parties' submissions
(i) The Defendant had a duty under section 117 to provide a care plan for W in advance of the tribunal hearing of 9 July 2001.
(ii) It was in breach of that duty, having failed to arrange any care in the community to be available on W's conditional discharge.
(iii) The Defendant was under a duty to make the arrangements for the after-care services necessary to implement the decision of the tribunal of 9 July 2001 within a reasonable time of that decision.
(iv) The Defendant had failed to do so. Instead, it had acted so as to frustrate the decision of the tribunal, by unreasonably objecting to Westfield House and failing to provide the resources necessary (because of the inadequacy of Rotherham's resources and the inadequacy as perceived by the Defendant of Westfield's own resources) to permit W to reside there until it was effectively ordered to do so by the second tribunal. It had thus failed to comply with its section 117 duty.
(v) The above breaches of duty by the Defendant prolonged W's detention. Although lawful under domestic law, his continued detention after the decision of the first tribunal infringed his rights under Article 5 not to be detained when his mental condition did not make his detention necessary and his right to respect for his private and family life under Article 8. The Defendant had committed the tort of false imprisonment and was also liable in damages under section 6 and section 8 of the HRA.
(vi) The Defendant was not protected by section 139(1) of the MHA, because it did not apply to judicial review proceedings: Ex parte Waldron  QB 824. Furthermore, properly construed it does not protect an authority whose liability arises from an omission rather than an act.
(i) No duty under section 117 arose until the decision of the tribunal of 9 July 2001 to direct W's conditional discharge.
(ii) If any duty arose before the decision of the tribunal, the Defendant had complied with it.
(iii) The Defendant was not under an absolute duty to provide after-care: its duty was one to use its best endeavours. It had done so.
(iv) The Defendant's objections to Westfield House were reasonable and genuine, and did not cause it to be in breach of its duty under section 117.
(v) The Defendant had no liability for Ms Arnell-Smith's exercise of the power conferred on her by the first tribunal's decision until it was endorsed by her superior.
(vi) The Defendant's refusal prior to the decision of the second tribunal to put in place resources to supplement those of Rotherham and of Westfield House was justified and did not involve a breach of duty under section 117.
(vii) It followed that the Defendant had not unlawfully caused the prolongation of W's detention.
(viii) Any responsibility of the Defendant for the continuation of W's detention at Wathwood Hospital came to an end in September 2001, when Dr Soliman withdrew his approval of Westfield House.
(ix) Even if the allegations of W were well-founded, the tort of false imprisonment had no application where there had not been a breach of UK domestic law.
(x) In the circumstances, D had not caused any breach of W's rights under Article 5 or Article 8.
(xi) In any event, D was protected by section 139(1) of the MHA from liability in damages.
(xii) An award of damages was not "necessary" within the meaning of section 8(3) of the HRA.
Liability for false imprisonment
When does an authority come under the section 117 duty?
"(1) This section applies to persons who are detained under section 3 above, or admitted to a hospital in pursuance of a hospital order made under section 37 above, or transferred to a hospital in pursuance of a hospital direction made under section 45A above or a transfer direction made under section 47 or 48 above, and then cease to be detained and (whether or not immediately after so ceasing) leave hospital.
(2) It shall be the duty of the Primary Care Trust or Health Authority and of the local social services authority to provide, in co-operation with relevant voluntary agencies, after-care services for any person to whom this section applies until such time as the Primary Care Trust or Health Authority and the local social services authority are satisfied that the person concerned is no longer in need of such services; but they shall not be so satisfied in the case of a patient who is subject to after-care under supervision at any time while he remains so subject."
"27.7 The courts have ruled that in order to fulfil their obligations under section 117 Health Authorities and Local Authority Social Services Authorities must take reasonable steps to identify appropriate after-care facilities for a patient before his or her actual discharge from hospital. In view of this, some discussion of after-care needs, including social services and other relevant professionals and agencies, should take place before a patient has a Mental Health Review Tribunal or managers' hearing, so that suitable after-care arrangements can be implemented in the event of his or her being discharged (see para 22.12)."
I consider the first sentence of this paragraph below. The vague prescription of "some discussion" before a tribunal hearing is telling, indicating an unwillingness or inability on the part of the Secretaries of State for Health and for Wales to specify the practical content of the section 117 obligation before the tribunal had made its decision. Paragraph 22.12 of the Code is no more specific as to what is required.
"I reject the submission that this duty (under section 117) only comes into existence when the applicant is discharged from Broadmoor. I consider a proper interpretation of this section to be that it is a continuing duty in respect of any patient who may be discharged and falls within section 117, although the duty to any particular patient is only triggered at the moment of discharge."
With the greatest of respect to Otton J, I have to admit to some difficulty in understanding this statement if it was intended to be of general application. If the duty to a particular patient is triggered at the moment of discharge, he is not owed a duty before discharge. I suspect that the reference to "any patient who may be discharged" was intended to refer to a patient whose discharge had been ordered by a tribunal, which was the case he was considering. If so, the above statement does not create the practical difficulties to which I have referred. It is to be noted that Otton J gave an alternative basis for his decision. He said:
"If I am wrong in that interpretation, I am satisfied that such a duty can be spelt out from the general statutory framework and requires district health authorities to provide a comprehensive range of hospital and community psychiatric services, including appropriate services to meet the needs of mentally disordered offenders: see section 3(1) of the Act of 1977 and also Regulation 5 of and Schedule I to the National Health Service Functions (directions to authorities and administration arrangements) Regulations 1989 (S.I. 1989 No. 51)."
"(1) that the authority has erred in law in not attempting with all reasonable expedition and diligence to make arrangements so as to enable the applicant to comply with the conditions imposed by the mental health review tribunal; (2) that a district health authority is under a duty under section 117 of the Mental Health Act 1983 to provide aftercare services when patient leaves hospital, and acts unlawfully in failing to seek to make practical arrangements for after-care prior to that patient's discharge from hospital where such arrangements are required by mental health review tribunal in order to enable the patient to be conditionally discharged from hospital."
"In my judgment Ex parte Fox supports the following propositions which I accept to be the law: (i) an authority's duty to provide aftercare services includes a duty to set up the arrangements that will be required on discharge; it is not a duty that arises for the first time at the moment of discharge; (ii) an authority with a duty to provide aftercare arrangements acts unlawfully by failing to seek to make arrangements for the fulfilment of conditions imposed by a mental health review tribunal under section 73(1); (iii) if such an authority is unable to make the necessary arrangements it must try to obtain them from another authority; (iv) if arrangements still cannot be made an impasse should not be allowed to continue, the case must be referred back to a mental health review tribunal through the Secretary of State."
"That suggests that today, at least in embryo, plans should be available before a tribunal hearing takes place …"
The italics are mine. The italicised words reflect, I think, the practical considerations to which I have referred above militating against the formulation of defined plans before a tribunal hearing. Furthermore, at 1352 Kennedy LJ accepted the submission on behalf of the tribunal that:
"… once the tribunal has stipulated its conditions the burden is passed to the local authority and the health authority to make the necessary arrangements within a reasonable time (see section 117 of the Act) …"
Again, the italics are mine. I infer that Kennedy LJ did not consider that an authority was under a duty to put the after-care plan in place before a hearing.
"20. The relevant provisions of section 117(2) are set out at paragraph 19 of Burton J's judgment. On their face they require the health authority to provide aftercare services for persons who cease to be detained and leave hospital. Decisions at first instance, to which I am about to refer, have held that the duty of a health authority extends to making arrangements for the care of a patient before that patient is discharged. Before Burton J, the respondent authority reserved its position as to whether these decisions were correct. Before us it has made the following limited concessions: (a) a health authority has power to take preparatory steps before discharge of a patient; (b) it will normally be the case that, in the exercise of this discretionary power, an authority should give way to a tribunal decision, and should use reasonable endeavours to fulfil the conditions imposed by such a decision, in so far as they relate to medical care; (c) failure to use such endeavours, in the absence of strong reasons, would be likely to be an unlawful exercise of discretion.
29. In my judgment section 117 imposes on health authorities a duty to provide aftercare facilities for the benefit of patients who are discharged from mental hospitals. The nature and extent of those facilities must, to a degree, fall within the discretion of the health authority, which must have regard to other demands on its budget. In relation to the duty to satisfy conditions imposed by a tribunal, I would endorse the concession made by the respondent authority as to the extent of its duty."
"96. … Where a Tribunal decides (i) that a restricted patient is suffering from mental illness for which psychiatric treatment is necessary for the health or safety of the patient or the protection of other persons and (ii) that detention in hospital for that treatment is not necessary if, but only if, psychiatric treatment is provided in the community, the Tribunal can properly make a provisional decision to direct a conditional discharge, but defer giving that direction to enable arrangement to be made for providing psychiatric treatment in the community. The Health Authority subject to the section 117 duty will then be bound to use its best endeavours to put in place the necessary aftercare. If it fails to use its best endeavours it will be subject to judicial review. If, despite its best endeavours, the Health Authority is unable to provide the necessary services, the Tribunal must think again. If, as is likely in those circumstances, it concludes that it is necessary for the patient to remain detained in hospital in order to receive the treatment, it should record that decision."
There is a difference between the judgments in K and IH in the formulation of the standard of duty, the former referring to reasonable endeavours and the latter to best endeavours. On the view I take of the facts of the present case, that difference is immaterial.
Did the Defendant breach its section 117 duty in this case?
"No judge can realistically sit as a court of appeal from a psychiatrist on a question of professional judgment. What a judge must be able to do is to ensure that such judgment, to the extent that its exercise is a public law function, is made honestly, rationally and with due regard only to what is relevant. Within this boundary more than one legitimate judgment – that of the community psychiatrist as well as of the mental health review tribunal – may have to be accommodated for the purposes of article 5(4), at least to the extent that the decision of the mental health review tribunal is explicitly dependent on the collaboration of the psychiatrist."
Similar considerations apply to the exercise of professional judgment by a qualified social worker.
Liability under section 117 and under Articles 5 and 8
"[Counsel for the applicant] … emphasises that the applicant is not interested in or seeking to claim damages against the doctors. He submits that the proceedings for judicial review which he is seeking to initiate do not constitute 'civil proceedings' within the meaning of section 139 of the Act of 1983. That section is concerned with private law, for example claims in tort brought against doctors. Proceedings under R.S.C., Ord. 53 are concerned with public law. Judicial review involves an inquiry into a decision - in this case whether there has been a plain excess of jurisdiction or not. The proceedings are not an action against the decision-maker."
In my judgment, section 139(1) does apply to claims for damages made in judicial review proceedings. The scope of the statutory protection does not depend on the form of proceedings or the forum in which they are heard. This conclusion is fortified by the inclusion in these proceedings of a claim for damages for the private law tort of false imprisonment. The Defendant is entitled to the protection of section 139(1) in relation to its liability under our domestic law.